“SUBSTITUTION OF ATTORNEYS”

SO YOU WANT TO CHANGE YOUR LAWYER

It is a fact of life that Personal Injury lawsuits, as a general rule, require years, rather than months, to reach a conclusion. This is a product of both the nature of a personal injury lawsuit–which requires investigation and “discovery”– and crowded court calendars. This situation also leads to the increased chance that a client will become dissatisfied, in some manner or for some reason, with some aspect of his or her attorney’s performance.

It is the absolute right of any client to dismiss their attorney at any time. It is also the right of that client to choose another attorney and to replace the dismissed attorney with another attorney. In legal parlance this is known as “SUBSTITUTION OF ATTORNEYS.” No grounds need be stated–though any responsible attorney to be “substituted” will want to know the reason he is being asked to replace the original attorney. The ethical attorney would be reluctant to accept the client if the reason being presented was one which the newly approached attorney would not be able to improve upon.

One of the most common reasons that clients give for dissatisfaction with their attorneys , as inexplicable as it is, is that the attorney does not respond to phone calls; that inquiries go unanswered; that the client feels as if they are ignored. Attorneys are often overworked and very busy. However, an attorney owes their client the respect and consideration of answering their inquires as expeditiously as possible, and that should be considered part of the responsibility in every case that is accepted by the attorney.

That is not to say that, rarely, clients can be unreasonable in the frequency of their requests for information. But experience shows that this is the infrequent exception. Unfortunately, the failure of attorneys to respond to their clients is a far more frequent occurrence.

An oft repeated complaint by clients is that they have not heard anything from their attorneys for a long period of time. The conclusion reached is that, therefore, nothing is being done on the case. This is harmful to the attorney client relationship and unfortunately is based on lack of knowledge about the activity involved in a personal injury case. While some participation by a client is necessary, such as depositions, attendance at medical examinations and perhaps supplying needed documentation, it is very limited in nature. The attorney is also involved in investigations, discovery of documentation from the other parties, possible motions, depositions of parties and witnesses and a variety of conferences. For most, if not all of these events, it is not necessary to involve the client. So while the attorney is very busy on the case, the client is unaware of the activity and deems the attorney to be idle. To inform the client of every event taking place, for every case in an attorney’s office, would indeed be excruciatingly time consuming and would probably generate client phone calls that would also consume an attorney’s time that could be far more productively be used elsewhere. It is somewhat of a dilemma.

Additionally, once ALL of the work on a case is completed, and usually not until all the work is completed, the case may be put on the court calendar (“filing the Note of Issue”). Filing the “Note of Issue” places your case in line to have a trial. Courts throughout the State of New York vary in the time it takes for a case to reach trial once the “Note of Issue” is filed. In New York City, it can vary from about eight months to two years, depending on the backlog of the particular court. This creates another problem in client relations: “dead time,” while the client is wondering what is happening to the case. Once a case is placed on the calendar, it would be a good idea for an attorney to so notify the client and make the client aware of the situation.

If, for whatever reason, the client feels compelled to change attorneys, and locates another qualified attorney with whom they believe they will find greater satisfaction (recognizing that the familiarity with the case gained by the first attorney may be sacrificed in the switchover), the client should realize that the fee charged to the client WILL NOT CHANGE. It will be the obligation of the old and new attorneys to arrange, between themselves, exactly how they will share the original fee charged the client by the first attorney. The client will in no way be penalized in terms of the fee for the desire to change attorneys.

Changing attorneys, while the absolute right of the client, should not be undertaken lightly. Suggestion: Speak with your attorney and tell them frankly of your dissatisfaction and see if it would be possible to remove the cause of your dissatisfaction before making this important decision.

“FORUM  SHOPPING” II

PICKING THE COURT THAT’S RIGHT FOR YOU: CHOICE OF “VENUE”

As we have seen, with respect to situations where state law may differ from federal law, and both state and federal jurisdiction exists, the fact situation of the case may determine the most advantageous court in which to bring your lawsuit.   There are, however, several other factors that will be considered by the experienced litigator, particularly in personal injury cases, in deciding which court to file your lawsuit, presuming a choice exists.

Time limits that restrict, or even eliminate, your pursuit of an action in state court may well be viable in Federal court.

This could also hold true should you have a choice of bringing an action in the courts of different states–the Statute of Limitations in one state could well differ from that of another state.

While virtually everyone has heard the term “citizen’s arrest” used at some point in time, rarely do people realize that the term has specific legal meaning and potentially serious legal implications.

FALSE  IMPRISONMENT

Any time a perpetrator intentionally confines the victim to a specific area, and does it against the victim’s will, that will constitute a “false imprisonment.”

THE “GOOD  SAMARITAN” LIABILITY FOR VOLUNTARY ACTS ?

A recent news item in New York City showed portions of video from a surveillance camera.   Twenty or more people simply passed by a man that was lying on the street.   It happened that that man had just saved a woman from a knife wielding attacker and in the scuffle, had himself been attacked.   No one stopped to help this man for an hour after the incident, and the “Good Samaritan” eventually died of his wounds for want of a “Good Samaritan” to come to his aid..   Prompt attention would have saved his life.
It is difficult to understand the motivation of anyone that would simply ignore another human being in grave distress.  Certainly, however, the public policy in most, , if not all, states, and definitely in New York, is to encourage the performance of life saving acts. To this end, there is a “Good Samaritan” law (Public Health Law, Article 30, Section 3000-a) that specifically establishes protection for anyone acting as a “Good Samaritan.”

The law applies in the following circumstances:
—It applies to ANY person (and NOT just medical personnel)
—The person must act without any expectation of monetary  compensation
—The act must take place outside a hospital or other medical facility

Under those circumstances, the person rendering the aid will not be held liable for either injuries or death allegedly caused by any act of that “Good Samaritan” while rendering aid, UNLESS it is determined that the “Good Samaritan” was “grossly negligent” in performing his acts.

What constitutes “Gross Negligence” can differ in different situations.  One word of advice, stay within your sphere of abilities.  If you have never taken a course in CPR, or learned how to utilize a defibrillator, be reluctant to utilize those capabilities.  A first step should always be to seek professional help if available.  Most important: the motivation should always be to assist the person in dire distress–and certainly not to render yourself a “hero.”
One more word of advice: No one is required to lend assistance–unless, of course, you are responsible for the dire situation in which the injured party finds him or herself.  If,  however, the decision is made to assist someone, the injured person  must not be left in a worsened condition than before the assistance began. So, if you decide to take an injured person to a hospital and, after driving a block you decide you’d rather not do it, for whatever reason, you cannot simply dump the person in the middle of a street where traffic now becomes a real hazard in addition to whatever injury the person sustained.

INTENTIONAL TORTS

We noted previously that a “tort” is simply a civil, as opposed to a criminal, wrong, committed against another. While criminal acts often result in incarceration to the perpetrator, the consequence flowing from the performance of a civil wrong, or “tort”, is the imposition of money damages imposed upon the “tortfeasor” and awarded to the injured party.

“Torts” are divided into those that are “intentional” and those that are unintentional.

They can be distinguished rather easily by answering the question:  Did the person (“tortfeasor”) engaging in the particular action, purposely want the results of that act to occur OR was it “substantially certain” that a reasonable person could see that the results of that action would occur.

D, driving his car, sees T, who insulted D’s wife last week, on the sidewalk.    D wants to scare the daylights out of T so he decides to drive his car on to a busy sidewalk.  T is not hurt but, as D swerves, he hits P, an uninvolved pedestrian, severely injuring him. D committed an  ”intentional tort”  with respect to P !

The distinction between an intentional and unintentional tort, in the field of Personal Injury law, could be crucial and devastating.     The “Statute of Limitations” for unintentional torts is virtually always three years in New York State (with certain exceptions such as in the field of medical malpractice).   However, lawsuits based on “intentional torts” have a Statute of Limitations (the time within which a lawsuit MUST be brought) in New York of only ONE year.   Consequently, for this and many other reasons we have been pointing out, consulting with an experienced Personal Injury Attorney just as soon after you suffer an injury as possible can mean the difference between realizing compensation for the injury you sustained or forfeiting that possibility through ignorance and inaction.

NEGLIGENCE: DUTY AND FORESEEABILITY

The overwhelming number of personal injury cases involve an act of “negligence” by one individual that results in an injury to another.   However, the fact that one individual’s negligent act results in another individual’s injury does not automatically create a valid basis for a lawsuit by the injured party against the negligent party.

The most famous “tort” (“tort”= a civil wrong) case studied by every law student for generations is Palsgraf v. Long Island Railroad. Mr. Palsgraf was standing on a train platform after buying his ticket, near some scales.  At the other end of the platform some men were rushing onto a train.  Conductors on the train helped the men aboard, but in the rush one man dropped a package which contained fireworks.  The fireworks exploded, causing the scales near Mr. Palsgraf, at the other end of the platform, to fall and injure Mr. Palsgraf.    Was the LIRR liable to Mr. Palsgraf for the injury he sustained?

The appeals court discussed  whether, in the first instance, there was any duty owed  Mr. Palsgraf by the LIRR and its conductors, since he was so far from the scene of the activity involving the alleged  negligence.  The lower court  ruled that there was a duty owed to Mr. Palsgraf.  The appeals court (overruling the lower court that found in favor of Mr. Palsgraf) decided that it was not reasonably foreseeable that the action by the conductors would result in injury to someone as remote as Mr. Palsgraf was to the scene of the acts. Consequently, there being no “duty”, there is no basis for the LIRR’s liability !

Since that case, courts have differed considerably in determining the basis as to whether negligent parties owe a duty to, and therefore become liable for, injuries that occur to remote individuals. The Palsgraf court established the principle of “foreseeability”–would a reasonable person have foreseen the possibility of the incident resulting in injury, in the manner the accident occurred?

Other courts have adopted a broader definition: was there a continuous and direct connection between the cause (the negligent act) and the effect (the injury)?   “Foreseeability” of the exact occurrence is not as dramatic an issue in this latter scenario.

WRONGFUL DEATH | CHILDREN AND INFANTS

We have noted that the awards in wrongful death cases in New York State involving the death of children or infants is almost invariably shockingly low to the average lay observer. This is because the permissible guidelines for determining the amount of such award, in New York, are generally restricted to “conscious pain and suffering” and “pecuniary loss”, the latter item of which, in the case of a child or infant, is understandably negligible.

In determining “pecuniary loss”, the jury can consider what the child or infant would have contributed to the support of the parents. Conjecture is not appropriate and consequently, proof of such an item is extremely difficult, if not impossible. It is usually to “conscious pain and suffering” that attorneys look to salvage some modicum of monetary compensation for the parents. In the event of an almost instant death then this, too, becomes a source of difficulty rather than of a just award.

If the defendant evinced conduct that was utterly indifferent to the safety of others, exhibited gross negligence or showed a conscious disregard for the life of others, then punitive damages might be applicable. In such instances, recoveries can be significantly higher.

If a parent was at the scene of the accident, in what is known in legal parlance as the “zone of danger”, then the parent may possibly be entitled to separate damages for “emotional trauma” inflicted by witnessing the accident.

Both “punitive damages” and a “zone of danger” claim are rarely available, but the experienced Personal Injury Attorney will be alert to any possible avenue to increase what might be, frankly, an otherwise inadequate recovery.

MUNICIPAL LIABILITY | CAN I SUE THE CITY? | CASES AGAINST NEW YORK CITY | “SPECIAL DUTY”

There is a basic rule that is applied when a lawsuit is contemplated against a municipal entity, such as the City of New York. That rule gives the City, or any municipality, “absolute immunity” for the acts of that government’s employees. This holds true even if those employees failed to act when they should have, or having acted, they did so in a negligent manner.

An individual resident of the City will have no basis for a successful lawsuit for injuries sustained through the acts of the City’s employees UNLESS that individual can demonstrate that a “SPECIAL DUTY” existed on the part of the City in favor of that particular individual.

The New York Court of Appeals (New York’s highest court) established four “elements” that create a “SPECIAL DUTY” relationship between a municipality and an individual:
— the municipality assumes a duty to act on behalf of the individual;
— the municipality’s employees must be aware of the fact that a failure to act may result in harm to that individual;
— there must have been some direct contact between the municipality’s employees or agents and the affected individual; and
— the individual harmed must have been justified in relying upon the assurance given to him/her by the city’s employees or agents.
Without demonstrating the existence of each and every one of these four elements, the injury incurred through the acts or omissions of municipal employees may go entirely uncompensated.

An experienced Personal Injury Attorney will also be aware of the fact that certain broad areas of acts by municipal employees are not considered “governmental” in nature–which acts ARE subject to the rules of “Special Duty Relationships”—but are , rather, considered “proprietary” in nature, and are instead decided by ordinary rules of liability and do not require the establishment of a “special duty” in order for the city to be held liable.

NOTICE OF CLAIM | MUNICIPAL LIABILITY | SPECIAL USE

Until 2003 the City of New York was primarily responsible for injuries incurred by individuals through cracks, potholes and uneven surfaces on City sidewalks. The primary responsibility shifted in 2003, through City Council legislation, that made the abutting commercial or residential landowners primarily responsible. However, in the case of one, two or three family homes, where those residences are at least partially owner occupied, and where the residence is used exclusively for residential purposes, the City of New York remains primarily responsible.

Nevertheless, even in those instances where the City of New York would be primarily responsible for accidents that occur because of sidewalk defects, the liability shifts to the homeowner if the cause of the accident was some item that was installed for the benefit or “special use” of the adjoining homeowner.

Defects in driveways are common “special use” situations. A water shut off valve, embedded in the sidewalk, has been held to be a “special use”.

Wisdom would dictate the service of a Notice of Claim on the City of New York even if a “special use” is anticipated. It simply cannot hurt, and failure to do so could be catastrophic if an incorrect assumption regarding a “special use” is made. Below I have added the legislation that shifts liability for sidewalk defects mainly from the City of New York to abutting landowners.